'CHAUDHARY MUHAMMAD TAJ, J.--- This appeal has been filed to challenge the judgment passed by the Shariat Court of Azad Jammu and Kashmir on 31-3-2004 whereby the revision petition filed by the appellant herein for cancellation of bail granted to respondents Nos.3 to 8 by the trial Court was dismissed and the other revision petition filed for grant of bail to respondents Nos.1 and 2 was accepted.
2. The facts are that a case under sections 302, 324, 147, 148, 149, 337-A-(i), A.P.C. Was registered against the accused-respondents and other accused (not before the Court). It was stated in the First Information Report lodged by the complainant at Police Station Kotli that he owns a P.C.O. In village Riangala. An altercation took place between him and Nisar brother of Malik Muhammad Mansha but the matter ended. Again the altercation took place. The complainant along with his brother Asif Hussain Shah was present at his P.C.O. When Malik Muhammad Mansha, Muhammad Yousaf, Zafar Malik, Aziz, Imran, Amjad, Malik Rizwan, Imtiaz, Malik Qamar, Javed, Niaz, Hafiz Aurangzeb, two other persons sons of Muhammad Razzaq along with 8/9 unknown persons arrived at Riangala through a jeep and two other vehicles. Zaffar, Imran, Hafiz Aurangzeb who were armed with kalashnikovs started firing. The other accused persons were armed with sticks, hatchets. Amir Asif Shah, the brother of the complainant, climbed up the roof top of a nearby Maktab School. Zafar Malik with intention to kill fired a shot which hit on the forehead of his brother. The other accused persons had been firing and the same was done at the behest of Malik Mansha Khan, accused.
After registration of the case the investigation was completed and a challan was submitted before the trial Court. The accused-respondents except accused Zafar Malik, applied for their bail before the trial Court through an application which was accepted to the extent of respondents Nos.3 to 8 while the same was declined to respondents Nos.1 and 2. A revision petition was tiled before the Shariat Court of Azad Jammu and Kashmir for grant of bail to respondents Nos.1 and 2. The complainant also filed revision petition for cancellation of bail before the Shariat Court of Azad Jammu and Kashmir, granted to other respondents. The revision petition filed for cancellation of the bail was rejected while the other revision was accepted. This appeal challenges the aforesaid order.
3. Mr. Muhammad Yunus Tahir, the learned counsel representing the appellant, contended that there is a very strong prima facie case existing against the accused-respondents. It was argued that the accused were specifically nominated, in the First Information Report with a specific role attributed to them. The learned counsel laid a stress that respondents Nos.1 and 2 were carrying fire-arms who fired from their deadly weapons and thus, through this indiscriminate firing the deceased was hit by the firing of Zafar Malik and on the last limb of his arguments, the learned counsel did not seriously press his appeal against other respondents. The learned counsel referred to the following authorities in support of his assertions:--
(1) Muhammad Ajmal Khan v. The State 1985 PCr.LJ 216 and
(2) Zahid Paras and another v. The State 1995 PCr.LJ 5.
4. Mirza Muhammad Nisar, who appeared on behalf of the respondents, opposed the contentions of the learned counsel for the appellant, on the grounds that the appellant lodged a report whereby 23 persons were involved. Out of those, 11 persons were discharged under section 169, Cr.P.C. Which shows that the First Information Report to the extent of those persons was held false by the investigating agency. It was also argued that no recovery was effected upon the accused- respondents. The learned counsel argued that the allegation of firing attributed to respondents Nos.1 and 2 is false as no mark of any firing was found which shows that effort has been made to rope in the innocent persons. It was further argued that according to the police the recoveries of empties of pistol were made from the place of occurrence from where the said accused- respondents were alleged to have made firing. It was also contended that according to own version of the police it was ineffective firing. The case of the respondents in view of the attending circumstances is of further probe. The learned counsel referred to an unreported case of this Court titled Karam Dad and others v. Muhammad Younas and others Criminal Appeal No,58 of 2003 decided on 27-4-2005 in support of his assertions.
5. We have heard the lcatned counsel for the parties and also gone through the record. During the arguments by the learned counsel representing the appellant, the stress was laid in respect of respondents Nos.1 and 2 and did not seriously press appeal for other respondents. The main ground taken by the learned counsel was that the accused-respondents were carrying fire-arms and they also started firing which though was not hit to anyone, however, their intention to kill was there and also common with the principal accused Zafar Malik who with his firing killed the deceased. It was explained that to arrive at the place of occurrence with a fire-arm would indicate that they shared a common intention and the object as such their participation did not allow them to be released on bail.
6. Before adverting to the merits, it would be stated that the learned Judge in the Shariat Court while allowing the bail made following observations:-- "Following the above principle enunciated by the apex Court, the cursory perusal of the F.I.R., the statements of the witnesses recorded under section 161, Cr.P.C., the medical report, the site plan and the other incriminating evidence on the record shows that 23 accused/persons were involved in the instant case out of .Which 11 have been given benefit of section 169, Cr.P.C. Whereas out of remaining 12 accused/persons Muhammad Imran and Hafiz Aurangzeb have been ascribed a role of ineffective firing with kalashnikovs at the place of occurrence. It has been argued by the learned counsel for the accused/petitioners that according to Point No,7 of the site plan, prepared by the Investigating Officer, Muhammad Imran was attributed to fire shots with kalashnikov but from this place 11 empties of .30 bore pistol were taken into possession but none of the pistols were recovered from accused party. Similarly, Hafiz Aurangzeb was ascribed a role of firing shots with kalashnikov from Point No,8 of the site plan mentioned above but from this place 4 empties of .222 bore rifle was taken into possession from the house of Itifaq, an absconder, but no respectable of the locality was associated with the recovery proceedings. Furthermore, according to Point No,10 of the site plan which is situated at the distance of 7-4 feet from the place of occurrence, 2 empties .222 bore rifle were taken into possession "wherefrom Hafiz Aurangzeb, accused was attributed to make firing with kalashnikov along with other accused/persons. It is also on the record that in spite of allegation of firing with kalashnikov and pistols no mark of firing at the place of occurrence was found or shown in the site plans.
' Even otherwise, the allegation against Muhammad Imran and Hafiz Aurangzeb is of ineffective firing, therefore, it is yet to be ascertained as to whether a case of constructive liability or sharing a common intention to commit murder against the accused/petitioners is made out or not. Merely because accused came in a group with deadly weapons would not be saddled with common intention to commit murder. It will be relevant to point out that the question of vicarious liability cannot be deeply examined at bail stage and this matter falls in the discretion of the trial Court.
Therefore, the case of both accused/petitioners Muhammad Imran and. Hafiz Aurangzeb is distinguishable from the case of Zafar Malik (not before me) and falls within the purview of subsection (2) of section 497, Cr.P.C.
7. The question whether the case of two accused-respondents namely, Muhammad Imran and Hafiz Aurangzeb, fell under the purview of subsection (2) of section 497, Cr.P.C. We have carefully noticed the following features of the prosecution case:--
(i) that the complainant in his First Information Report has involved 23 accused persons in the case;
(ii) that 11 persons out of 23 mentioned above, were discharged under section 169, Cr.P.C. Including Malik Mansha Khan accused, on whose behest the occurrence was claimed to have been done and was alleged to have participated in the occurrence as disclosed in the First Information Report;
(iii) that 8 persons were shown unknown persons who, according to the complainant, participated in the occurrence;
(iv) that no mark of any firing was noticed by the investigating agency though indiscriminate tiring with kalashnikovs was alleged to accused-respondents Nos.1 and 2;
(v) that the empties of pistol were recovered from the place the said respondents were alleged to have made firing;
(vi) that only ineffective firing is attributed to the said accused persons; and
(vii) that no overt act is attributed to the other accused-respondents whose bail was allowed by the trial Court and the order was affirmed by the. Shariat Court by dismissing the revision petition filed for cancellation of bail.
8. While considering a bail matter of an accused involved in a non-bailable offence, if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or imprisonment for life, he shall not be released on bail unless the case is covered by any of the provisos maintained under subsection (1) of section 497, Cr.P.C. But if it appears to the Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt, the accused shall be released on bail under subsection (2) of 8ection 497, Cr.P.C.
9. It is important to mention that the Court has to assess the incriminating material brought by the prosecution though the Court is not called upon at that stage to conduct anything in the nature of a preliminary trial to consider the probability of the accused's guilt or innocence. It has nevertheless a necessary part of its function, to ascertain, as to whether there exist any reasonable grounds upon which its belief can be founded to be prima facie satisfied that some tangible evidence can be offered.
10. In the present case the accused-respondents Nos.3 to 8 were not attributed any overt act as such there case was clearly covered under subsection (2) of section 497, Cr.P.C. And, therefore, correctly the learned counsel representing the appellant did not press the appeal to their extent at the last limb of his arguments.
11. So far as the accused-respondents Nos.1 and 2 are concerned, their case though is distinguishable from the other respondents particularly when their bail was refused by the trial Court, however, we find that their case is also of further probe for the following reasons, therefore, there is no ground for cancellation of bail:--
(i) that a large number of persons, as many as 23, were involved in the occurrence;
(ii) that 11 out of them were discharged under section 169, Cr.P.C. Including Malik Mansha Khan, who was held responsible for this occurrence by the complainant;
(iii) that the marks of their firing were not noticed by the Investigating agencies;
(iv) that according to the prosecution version only one person was injured through a single injury which was attributed to Zafar Malik; and
(v) that the Shariat Court of Azad Jammu and Kashmir has allowed the bail after giving good reasons. This Court normally does to interfere in the orders passed by the Courts below particularly by the trial Court unless those are perverse or arbitrary.
12. In view of the above, while placing reliance on the case titled Karam Dad and others v.
Muhammad Younas and others Criminal Appeal No,58 of 2003, which has been decided by this Court very recently, we hold that the order passed by the Shariat Court does not warrant any interference by this Court which has been recorded after due appreciation of the facts and law as such the appeal is dismissed. The case-law referred to by the learned counsel for the appellant, with its distinct facts, is not applicable to the case in hand as such is not discussed.